India COVID travel ban to Australia begins today with jail and fines for those who breach it
The government says the travel ban and penalties were done on medical advice.(AP)
A temporary travel ban between India and Australia begins today, with anyone breaching the rule to face up to five years in jail or heavy fines, in a move which some experts say may be illegal.
The penalties have been introduced through the Biosecurity Act.
It is understood to be the first time Australia has banned and put in place criminal sanctions for its own citizens who return home.
Critics have described the government's move as "immoral and un-Australian".
Senior government ministers have defended the ban, saying it was based on expert medical advice and done to protect Australians.
"Fifty-seven per cent of the positive cases in quarantine had been arrivals from India," Foreign Minister Marise Payne said.
"It was placing a very, very significant burdern on health and medical services in states and territories."
According to Education Minister Alan Tudge, the Howard Springs facility in the Northern Territory currently has an infection rate of 15 per cent, well above the goal of two per cent.
Experts have now questioned whether the ban is lawful.
Professor Kim Rubenstein from the University of Canberra said it raised questions about an Australian citizen's right to return home.
"Individuals who are stranded might seek to get legal representation to challenge it as unlawful," she said.
"They would be wise to be speaking to their representatives in Parliament to ask the Senate committee to, as a matter of emergency, review this measure as appropriate.
"I think there are serious legal questions the Parliament should be interrogating."
Michael Bradley from Marque Lawyers said the law requires the Health Minister to consider the least "intrusive" way of ensuring the quarantine systems are not overwhelmed and people in Australia are protected.
"I think it's very difficult to say that [Greg Hunt's] appropriately applied that discretion," Mr Bradley said.
"On top of that, there are real question marks about the constitutional validity of this exercise of power."
As well as the risk of jail time, people who breach the ban also face a fine of up to $66,000.
Chief Medical Officer Paul Kelly said while the ban was due to lift on May 15, he believed it would take "months" for the situation to come under control.
Instead, he said, the focus is on finding ways to prevent anyone with COVID-19 from travelling back to Australia.
"We have already insisted on having a test 72 hours before departure; we are going to strengthen that by having antigen tests at airports as well," he said.
"We're looking at other measures to decrease the positivity rate of flights coming from India."
'They are our people'
Indian Australians are continuing to urge the government to provide as much assistance to the struggling country.
Dr Yadu Singh is the President of the Federation of Indian Associations of New South Wales and wants the government to vaccinate vulnerable Australians currently in India.
"I can see why the government of Australia banned those flights temporarily," he said.
"But we must not forget that these Australian citizens stuck or stranded are our moral obligation — they are our people."
Professor Kelly said the idea of vaccinating vulnerable Australians was one to consider, but noted it would be difficult given how spread out across the country people were.